Effective Employee Handbooks and Record Keeping Can Reduce Exposure and Create Better Workplaces for Restaurants

by Adam S. Chotiner4 Min Read

Running an efficient and profitable restaurant requires effective labor management. The restaurant owner or manager must diligently engage in two separate but related components in order to achieve and maintain better employee relations while limiting legal exposure:  documentation and consistency. 

Appropriate documentation in the workplace can take many forms, including employment applications, noncompetition agreements and accurate time and payroll records. But on a day-to-day basis, an employee handbook is perhaps the most impactful way to maintain positive employee relations. This is particularly imperative in the restaurant and hospitality industry, as employees interact with many people on many levels.  A well-crafted handbook helps employees understand workplace policies and avoid confusion that may lead to legal action should employees feel they are being treated differently or unfairly.

A well-crafted handbook helps employees understand workplace policies and avoid confusion.

Imagine a busboy or hostess is habitually late or has established a pattern of missing work without a bona fide excuse. What if one of the waitresses is fraternizing with guests or the chef creates a tyrannical atmosphere in the kitchen?  The restaurant owner or manager terminates his or her employment, and the employee then claims discrimination.  The employer’s ability to defend the claim will hinge, in large part, on documentation and consistency. 

Every restaurant, from small diners and coffee shops to more elegant or expensive establishments, should have a signed acknowledgment from all employees that confirms he or she received, read and understands the employee handbook, which clearly articulates the restaurant’s rules of acceptable behavior and established policies, and that violations will not be tolerated and may lead to termination.  Ideally, the employer has documented every tardiness, unexcused absence or other violation.

However, even that might not be enough to defeat a discrimination claim if the employer has not consistently applied its rules.  Suppose the frequently tardy and absent hostess is the only Jewish employee.  And further suppose there are two non-Jewish servers who were also guilty of habitual tardiness and unexcused absences.  If the restaurant fails to consistently apply rules and discipline to the other two employees, then it will be far more difficult for the employer to defeat the claim of discrimination. 

Clearly and consistently applying workplace policies and expectations can avoid claims of arbitrary enforcement or, worse, discrimination. By treating similar situations in a uniform manner and maintaining employee documentation throughout the restaurant – commendations and discipline alike – the owner creates a pattern of practice not easily pierced by individual claims of disparate treatment.

Fostering Workplace Congeniality

A well-written employee handbook and consistently-applied company policies don’t just help avoid lawsuits or claims of discrimination in the restaurant and hospitality industry. The staff, from back office people to waiters, busboys and shift managers, appreciate consistency and knowing what to expect.   Setting forth rules in an employee handbook and regularly enforcing those rules can create a more congenial workplace.

Put another way, employees like working for a company that has its act together.

Thinking of creating an employee handbook for your restaurant? It doesn’t have to be a “book,” per se, but a booklet or collection of company rules, policies and procedures.

What belongs in the handbook? Rules and guidelines on employee performance, annual reviews, disciplinary policies, and timekeeping and payroll practices make clear the restaurant’s policies and its expectations of its workforce.

It should include safety and accident rules and policies regarding confidentiality, conflicts of interest, moonlighting, or other outside work.  These are common in the industry, and the restaurant owner should be upfront about the expectations of, for example, a server taking on outside business to augment his or her income.

A handbook might also include company dress code (especially when specific clothing or uniforms are required), paid time off policies (vacation and sick time), holiday observances, and even whether, and how often, “smoking breaks” are allowed. Weather related issues should also be addresses – i.e. how and when the company will respond in the event of a hurricane, tropical storm, or blizzard.

The handbook should definitely address overtime and the classification of employees as exempt or not exempt from overtime entitlement, as well as health insurance and other benefits. It should also address the tip pool and how that works in this particular establishment.  In light of the proliferation of technology, many handbooks now contain policies regarding the company’s computer system and employee use of mobile devices.

There is no statute which expressly requires a “handbook.”  However, there are workplace laws, such as the Family and Medical Leave Act (“FMLA”), which obligate employers to set forth certain policies in writing, and an employee handbook is the ideal place to identify and disseminate those policies. Restaurants are no exception.  Moreover, every employer should have an equal employment opportunity policy and an effective anti-harassment policy.

A Word of Caution

Restaurant owners should consult with a labor and employment attorney about preparing or reviewing an employee handbook. Owners may know how to run a restaurant, but the numerous issues that may arise when dealing with employees are often items they never even considered. Consultation with a professional will help ensure the handbook includes what it should, but it will also help avoid language which could create legal liability.  In recent years the National Labor Relations Board (“NLRB”) has taken a very aggressive position against policies it believes infringe on employees’ protected right to engage in “concerted activity,” which means employees taking action for their mutual aid or protection regarding terms and conditions of employment.  The NLRB’s enforcement efforts – which are directed to both unionized and non-unionized workforces, including restaurants – have frequently focused on policies which, on their face, appear reasonable to many employers.  For example, the NLRB has attacked social media policies which limit what employees can say about their employer online; policies which limit what employees can share with each other about their compensation; and policies which limit the taking of photos or videos at the workplace.   

Conclusion

Once a restaurant owner has an effective handbook in place, he or she – through the human resources director, hiring manager or other centralized department – must make sure its use becomes routine. Every new hire from janitor to executive chef must be provided the handbook and an opportunity to ask questions. The employee can keep the handbook as a reference tool throughout the employment relationship, while the restaurant ownership maintains the signed acknowledgment in the employee’s personnel file. 

The employee then goes about doing his or her job. And the employer goes about applying and enforcing the rules in the handbook clearly, consistently, and with appropriate documentation - and less risk of undue exposure.

Adam S. Chotiner

Adam S. Chotiner

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Adam S. Chotiner is a Shareholder with Shapiro, Blasi, Wasserman & Hermann, P.A. one of the largest independent full-service litigation and transactional law firms in South Florida. He is Board Certified in Labor and Employment Law by The Florida Bar and oversees the firm’s Labor and Employment Law practice group.

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